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Over the last several years, a number of municipalities across the nation have passed ordinances imposing bans, fees, and/or taxes on single-use plastic carrier bags distributed by retailers. In the most recent 188th legislative session, Massachusetts legislators sought, and failed, to pass the first statewide ban on plastic bags. That legislation was instead passed by California and signed into law on September 30, 2014. Given California’s recent passage of a statewide ban, and the increasing concern of legislators and environmental groups over potential environmental impacts from the use of plastic bags, it is highly likely that Massachusetts legislators will reintroduce the same or similarly-worded legislation in the next session.

Since the introduction of single-use plastic carrier bags in U.S. supermarkets in the late 1970s, consumption of plastic carrier bags has escalated. In 2010, the U.S. International Trade Commissionreported that approximately 500 billion to 1 trillion plastic bags are consumed annually worldwide. Environmental groups such as the Sierra Club are concerned about the increasing buildup of plastic bag debris in the oceans. Sierra Club maintains that plastic bag litter can foul waterways and cause the death of marine animals that have mistaken the bags for food.

Approximately 190 municipalities across the nation have passed ordinances imposing bans, fees, and/or taxes on plastic bags. According to a recent Boston Globe article, Nantucket appears to have been the first municipality to ban plastic carrier bags “to the maximum extent reasonably practicable,” starting in April 1990. SeeTown of Nantucket, Ethics, Division 1, Part I § 125-3 (“All packaging added to or supplied by vendors or commercial establishments within the Town of Nantucket for merchandise of any type being removed from the establishment shall comply with such rules and regulations requiring the use of biodegradable packaging [packaging other than plastic or styrofoam] to the maximum extent reasonably practicable”; this section took effect April 15, 1990). Since then, in Massachusetts, ordinances have been passed in Great Barrington, Manchester, Brookline, and most recently Marblehead, and are being considered by several more municipalities. However, until recently, the bans were all localized; there was no statewide ban.

California’s new statute will prohibit, in a phased approach, grocery stores, convenience stores, liquor stores and pharmacies within the state from providing single-use carrier bags (plastic or paper) to their customers, with specified exceptions. The new law will also require these stores to meet other specified requirements, such as imposing a $0.10 tax on recycled paper bags and only distributing certified reusable grocery bags that meet certain conditions. In an effort to reduce the potential impact on California jobs, the law will provide up to $2 million in competitive loans to businesses transitioning to the manufacture of reusable bags. California Senator Alex Padilla (D-Pacoima), the bill’s author, believes this law will “greatly reduce the flow of billions of single-use plastic bags that litter our communities and harm our environment each year.” However, theAmerican Progressive Bag Alliance, which represents American plastic bag manufacturers and recyclers, intends to seek a voter referendum to repeal the law, which is scheduled to take effect in July 2015.

While California was the first state to pass a statewide ban on plastic bags, other states -- including Massachusetts, Rhode Island and New Jersey -- had similar bans pending in the last legislative session. In April 2013, Massachusetts’ Joint Committee on Environment, Natural Resources, and Agriculture referred to the Committee on Ways and Means two bills (H.696 and S.359) that, if enacted, would have prohibited specified types of retail stores (including stores 4,000 square feet or larger or owning three or more locations in the Commonwealth) from providing single-use plastic carrier bags to customers. Retailers would have been limited to providing recyclable paper bags, reusable carryout bags, compostable or biodegradable plastic bags, or a combination thereof. However, the bill died in the Committee on Ways and Means.

This failure has not kept the Joint Committee from continuing to consider another bill relative to the reduction of plastic bags (H.787). The Joint Committee is investigating and studying this bill, together with other bills that seek to reduce solid waste and increase recycling in Massachusetts (H.741, 746, 758, and 765). As currently written, House Bill 787 would prohibit all retail stores located in Massachusetts, without regards to store size or number of locations, from distributing plastic carrier bags at the point of sale. The Joint Committee intends to report the results of its investigation and study and its recommendations, if any, together with drafts of legislation, to the Clerk of the House of Representatives on or before December 31, 2014.

It is highly likely that Massachusetts legislators will again attempt to introduce a bill that is the same or similarly-worded as House Bills 696 or 787 or Senate Bill 359. California’s passage of its statewide ban will be a significant motivator for Massachusetts. However, a major driver for California’s statewide ban was to eliminate confusion caused by a patchwork of 127 local laws prohibiting plastic bags. Indeed, the California Grocers Association lobbied for the bill in part because it would improve statewide operational consistency, in addition to being a significant source of revenue due to the paper bags fee.

However, in contrast to California’s situation, in Massachusetts, only five towns have adopted bag bans, and a statewide ban is strongly opposed by the Massachusetts Food Association, which represents the Commonwealth’s grocery and supermarket industry. At the Joint Committee’s hearing on H.696 and S.359, the Association testified that the ban would be “restraining and counterproductive” to grocers and supermarkets. The Association had already undertaken efforts to decrease the number of disposable bags distributed (both paper and plastic) and to increase the recycling of plastic bags and the sale and use of reusable bags. The Association asserted that the bags themselves are not the problem but rather the problem is customers’ improper disposal of them. Thus, there is a lack of similar support in Massachusetts for a statewide ban. Moreover, because so fewer municipalities have adopted bans in Massachusetts, a statewide ban could be more difficult, and more costly, to implement in Massachusetts than in California.

As an alternative to banning plastic carrier bags, and to provide funding for recycling initiatives, Massachusetts legislators could consider imposing a tax or “user fee” on each plastic or paper carrier bag. In 2010, the District of Columbia imposed a 5-cent fee on each plastic or paper bag dispensed by specified retailers. The District reported in 2013 that since the law’s enactment, District businesses had seen a drastic reduction in bag usage and environmental clean-up groups had witnessed fewer bags polluting D.C. waterways.

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